from the falling-off-the-stool dept

It has certainly been a turbulent year for the NFL. The league is reeling from ratings declines, accusations of political bias, its own versions of the #MeToo wave that has collided with our larger culture, and a seemingly never ending controversy over how players comport themselves during the National Anthem that essentially works as a feedback loop of outrage on every side helped along by the man holding the highest public office in our union. With that in mind, relatively small intellectual property dust-ups may seem low on the eyeball list for those following the league, but it's still worth pointing out when the league gets IP questions wrong, as it often does.

Yet not every accusation lobbed in its direction is valid and the rather over the top response from one online outlet over the branding of some t-shirts is one that is not. The background on this is that Barstool Sports is a part humor, part satire, part sports blog with a turbulent relationship with Roger Goodell and the NFL. The Boston iteration of the site has been a particularly virulent thorn in the NFL's side and made much of its name when the league suspended Tom Brady for deflating some footballs. The site also pitches a line of t-shirts with the phrase "Saturdays are for the boys" on them, which I suppose is some kind of a nod to college football. Well, the NFL recently came out with a line of "Sundays are for the [blank]" line of shirts, with the blank being each of the 32 NFL teams that famously play games on Sundays. This did not escape Barstool Sports' attention.

But this I cannot stand for. I’m not letting this rat fuck Roger Goodell pull one over on me. I’m not letting him stand at the podium at the Super Bowl, say he’s never heard of Barstool Sports, then start slinging SAFTB gear in the NFL.com store. That’s fucking bullshit and I wouldn’t be a man if I let it slide. I don’t know what I’m gonna do because I’m not entirely sure that this is actionable, as we don’t own every day of the week, but I’ve never let the rules stop me from making a scene before, Roger. I’ll get Charlie Kelly to draw up a C&D in crayon and I’ll go sit my ass in the lobby at Park Ave, a place where I’m banned from enter, again. I’ll have Michael Portnoy Esq bury you up to your eyeballs in paperwork. I’ll start selling so many goddamn NFL copyright infringing t-shirts it’ll make your head spin.

First and foremost: bros, take a breath. Whatever the relationship between Barstool Sports and the NFL, these t-shirts are not some threat to the site's merchandise income. As for the intellectual property question here, there really isn't one. A phrase of this nature, this size, and this level of creative originality isn't going to be the cornerstone of the copyright lawsuit of the century, and that's without taking into account the NFL's large cadre of lawyers. On the trademark front, the phrases are both non-unique enough and sufficiently different so as to wave off any concerns about public confusion. There's just nothing here.

But if the threat of selling copyright infringing merch on Barstool's end isn't some joke, or perhaps even if it is, such statements serve as great evidence for any willfull infringement claims the NFL might want to make against the site in the future. Some of the media coverage has included questioning what the upside for the NFL is in using such a similar phrase, which is fairly silly. The upside is selling the shirts. The real question is: what is the downside? The answer is pretty clearly: there is none.

from the because-intellectual-property dept

Politics and intellectual property always get weird and silly, often during Presidential election season. Following on last year's insanity in which Hillary Clinton's PAC tried to take down parodies on CafePress and Zazzle, presidential candidate Ben Carson has apparently decided no one should possibly be allowed to create any kind of Ben Carson merchandise, except for the Ben Carson PAC, and he's decided to list out every possible intellectual property argument he can think of: copyright, trademark, privacy rights. I'm almost surprised he didn't find a way to include patents too.

Except none of that is true. Thankfully, CafePress has been working with Paul Levy from Public Citizen on these issues for many years, and he has sent a reply to K. Clyde Vanel, the lawyer representing the Carson campaign in which he systematically dismantles the arguments made in the letter. As with most letters from Paul Levy (and, yes, he's written one or two on our behalf in the past), it's a work of art. The summary line:

The notion that expressing views about Carson's candidacy violates any of his rights is
simply absurd. It is shocking that a lawyer whose web site touts his expertise in intellectual property
law would sign his name to such a communication.

Then, let's go one by one through each of the claims to show just how ridiculous they each are. We'll start with trademark. Levy points out that it's true that the "Ben Carson for President 2016" organization has applied for a trademark on a logo for the campaign, but the items they're looking to get taken down do not include that logo.

At most, the items display the phrase "Ben Carson for President 2016," often appearing in
the patriotic colors of red, white and blue. Many of them simply use Carson's name, or just his given
name or his profession. You cannot use trademark theories to ride roughshod over members of the
American public who either share your clients' views and favor Carson's candidacy, or for that
matter disagree with their views and oppose Carson's candidacy. They can hardly express their
views in that respect without identifying the candidacy about which they wish to speak.

Oh, and you know how SuperPACs need to be entirely separate and independent from campaigns? Well, as Levy notes, if Carson's lawyer's theory is accurate, no SuperPAC can support Carson without violating his trademark:

Moreover,
it is very common for people to express their views about presidential candidacies, completely
independent of the campaign; this is so common that it defies belief that a reasonably careful
consumer would believe that a shirt or bumper sticker advocating your client's election necessarily
came from the campaign itself. Indeed, the Super PAC "2016 Committee" carries various wares that
display the phrase "Ben Carson for President 2016." E.g., http://store2016committee.org/pins-stickers-and-magnets/. Super PACs have to be independent committees, and cannot coordinate with the official campaign. I assume you are not going to argue that 2016 Committee's use might
confuse consumers into believing that Carson or his campaign committee is the sponsor of the PAC.
So I doubt that you have any realistic chance of arguing that the items carried by CafePress are likely
to cause confusion, a key element of a trademark infringement claim. And because your state law
claims regarding misappropriation of name or likeness also require a showing that the use implies
that the plaintiff endorsed or authorized the product in question, your inability to show lack of likely
confusion condemns those claims as well.

Yes we're this far and we haven't even discussed fair use or that whole First Amendment thing. No worries, Levy's got that covered as well:

More important are the issues of fair use and the First Amendment, which apply equally to
your purported misappropriation of name and likeness claims as well as to your trademark claims.
Speech about a candidate for president is squarely protected by the First Amendment, hence any
effort to use trademark law to quash such uses is highly suspect. Although CafePress users' products
are sold, their contents are noncommercial speech, which qualifies for full First Amendment
protection.

Okay, next up: privacy rights. Yes, the guy running for President is claiming that T-shirts supporting his campaign for President violate his privacy rights. I'm almost surprised Levy didn't just respond with "Really?":

Your reference to a purported invasion of Carson's privacy is particularly foolish. Given the
intense scrutiny that presidential candidates receive in this day and age, it is a matter of some doubt
whether any statement about a presidential candidate, especially one who now stands second in the
polls of the Republican nomination, could constitute an invasion of privacy, no matter how personal.
But there is nothing "private" in the expression contained on the products that CafePress carries--
they are all specifically about the Carson candidacy. That candidacy is certainly not private.

And then the copyright claims. Those should be pretty quick to take care of, because (as you guessed) everything about them is bullshit:

Finally, you make a claim of copyright infringement and claim that the DMCA has been
violated. But the DMCA imposes an obligation on the hosts of interactive web sites like
CafePress.com only once the purported copyright holder has scrupulously followed the formalities
required by 17 U.S.C. §512(c)(3)(A); your email does not meet those requirements. One important
flaw in the copyright claim is that you do not identify the specific works that infringe your clients'
copyrights, and looking through the various items displayed at http://www.cafepress.com/+ben+carson+gifts,
I do not see any materials that are likely to infringe
copyrights that your clients own. Most of the items contain some variation of the phrase "Ben
Carson for President 2016." That expression lacks sufficient originality for copyright protection.
Indeed, if the phrase were copyrightable, your clients might not be the owners of the copyright,
because they might not have been the first to fix it in a tangible medium of expression. It is quite
possible that some supporter hoping to encourage Carson to run may have written it down before
Carson did. That person would own the copyright, if the phrase were copyrightable, and your clients
would be among the infringers.

CafePress takes its copyright obligations very seriously. Therefore, I invite you to specify,
in detail, the specific works in which your clients claim copyright, so that we can assess whether the
inclusion of any copyrighted content in its users' designs might be fair use. Certainly, if you identify
any material that genuinely infringes a valid copyright that your clients own, CafePress will take it
down.

In closing, Levy points out that way back in 2008, he helped CafePress sue the Republican National Committee for threatening CafePress in a similar manner.

During the 2008 election, the Republican National Committee sent CafePress a
series of threats to sue for trademark infringement because CafePress users were having shirts and
other items printed with designs expressing views about the Republican Party or various candidates,
using the acronym GOP or images of elephants. CafePress eventually had to sue the RNC for a
declaratory judgment of non-infringement, and the result was a great deal of embarrassment for the
Republican Party; the RNC then retracted its threat, subject to a request that CafePress direct users
who, without any other expressive design elements, displayed a particular image of an elephant that
the RNC had trademarked, to ask the RNC for permission (the RNC indicated that consent would
readily be given).

I trust that Carson will want to save a similar embarrassment for his political campaign. I
hope you will issue a prompt retraction of your demand.

from the government-overreach dept

Earlier this week, we predicted that either today or tomorrow, we'd hear about ICE and the DOJ once again seizing a bunch of websites... and here it is. This morning, ICE announced that it had seized another 313 websites based on its highly questionable legal theory concerning taking down websites without any adversarial hearing. Of course, lately it's moved away from doing site seizures concerning websites that deal with content/copyright issues, and focused instead on those it claims are selling counterfeit merchandise. Along those lines, ICE announced that it arrested a few people with counterfeit Super Bowl merchandise.

Of course, this is all for show. Waiting until just a couple days before the Super Bowl is pretty ridiculous, since if people were going to buy merch, they already did so. This is just ICE, once again, generating headlines for the corporations it seems to think it represents. As is his usual MO, ICE boss John Morton talked up just how "successful" this operation was, based on his own metrics, claiming "This just takes good old-fashioned police work, people getting out on the streets."

Funny, then, that he completely leaves out the parts where they seized legitimate merchandise and hassled the seller. It appears that, sometimes, ICE just isn't very good at "good old-fashioned police work." And that's especially true when it seems to be taking orders from big companies, rather than the public it is supposed to be protecting.

from the ofwgkta dept

The BBC has a great short video feature looking at Odd Future, the massively popular (and equally controversial) rap collective, and their merchandise-focused approach to the music business. Odd Future has always been an interesting case study in music: their graphic content prevents them from getting much radio play, their career was started and built online, and they give away all their music (20 albums worth, at this point) for free. But they have been making money since the beginning by selling homemade merchandise directly to fans, offering lots of limited edition shirts and one-off products. Now they've combined that approach with their highly successful tours, by launching pop-up merch shops in every city before the show. They do meet-and-greets at the shop where they take photos and sign autographs. The fans love it—they were in Toronto recently, and the line for the pop-up shop stretched several blocks, and according to the BBC they are moving unique hand-made t-shirts at £100 each.

Tour merchandise has always been popular, but Odd Future takes it to the next level (though they're not the only artists to experiment with this kind of thing). Rather than just selling cheap t-shirts at a massive markup from a table in the venue, they turn it into a whole companion experience to the show, and offer merch that's actually one-of-a-kind. The Odd Future kids are naturals at connecting with fans, and this shows how they also combine that with a bundle of different reasons to buy. Well-known for shirking the establishment in every way imaginable, Odd Future doesn't seem to care too much about record sales, and they definitely don't care about piracy or competing with free—they've found a new way of doing things, and it's working.

from the but-he's-in-hot-pursuit dept

There have been a number of lawsuits filed recently by former TV show stars claiming that the studios are cheating them out of downstream revenue as promised by their contracts. Perhaps the most high profile one involved members from the cast of Happy Dayssuing for not getting a cut of home video and merch sales. In that case, it appears CBS tried to buy off the actors with a few thousand dollars, rather than the millions they claim they're owed. In another such lawsuit, James Best, the actor behind the famed Sheriff Roscoe P. Coltrane on The Dukes of Hazzard, is similarly claiming that Warner Bros. is stiffing him for millions on merchandise:

Best says his original contract with Warners entitled him to 5% of merchandising revenue from products that featured his identity, or 2.5% of total revenue for merchandise when other cast members were incorporated. The agreement purportedly covers not only the initial run on television, but also is said to give him "financial participation in spinoffs."

Best claims he's been asking Warner for an accounting of merch sales for 22 years, and finally got it in 2009. However, he notes that the numbers provided to him do not match, at all, with the numbers that Warner Bros. has bragged about publicly concerning merch sales. With all of these disputes, it's not entirely clear who's really right, though it does sound like contracts weren't always clearly written and, even worse, the studios have been dreadful at actually properly accounting for things.

from the don't-forget-the-merch dept

We recently wrote about how bands are (successfully) experimenting with different models to sell more merchandise at shows, and Ian Rogers of Topspin (who I also -- finally -- got to meet at the Leadership Music Digital Summit) writes about two bands he recently saw who clearly understand the value of selling (and, as he notes, neither band is using Topspin, so he's not promoting his own partners here) by actually realizing that selling merchandise is part of their job. He describes how one band, Halestorm, was opening for another band, but rather than being just a typical opening band that fades into the background, they made sure that people knew about them, first by putting on a great show and then by making it clear that (a) they have affordable merchandise for sale and (b) the band itself will be hanging out with the crowd and wants to meet everyone. From Ian's post:

Lzzy starts solo with a guitar around her neck and a mic, just singing acapella. Long notes, killer voice. She has people cheering for her before the rest of the band even walks out on stage. Before her voice gets hidden behind the rock, she lets 'em know she can sing and you can see people are impressed straight away.

The rest of the band appears and they tear through a few songs. It's straight-ahead rock, on the heavy side but ready for pop radio. Everyone in the band is high-energy and engaging, even Lzzy's brother Arejay on drums is standing up for parts of the songs and just generally being a showman.

Mid-way through the set Lzzy announces they have a new record coming out in a few weeks but you can buy a pre-release of it now for $5 at the merch stand.

There's a drum solo-y part that doesn't go on long and ends with the entire band at the front of the stage playing drums and the crowd cheering as they go crazy with it.

During the last song Lzzy reminds them that they have their own merch stand upstairs and CDs for only $5. She also says the whole band is going to be up there after their set and that she wants to meet everyone.

I head over to the merch stand after the show and watch their tour manager relieve the woman who runs the merch table so she can disappear into the crowd below with a box of CDs with "Halestorm CDs $5" written on it.

The merch stand is mobbed. It's surrounded by people and they are selling merch literally as fast as their tour manager can manage.

The band appears (after breaking down their own stage setup) and meets and talks to as many people as possible, while helping to sell their merch.

Free stickers list their MySpace page, etc.

As Ian notes: "I'm not worried about these guys at all. Even if the record doesn't work at radio (it may) they're going to do just fine building their audience one show at a time." The band is doing everything right. They're using every opportunity to connect with fans, while also giving them a real reason to buy. They're not waiting for their record label to get them on the radio or MTV. They're doing everything they can to actually build up a rabid supporting fanbase from the bottom up.

from the business-models-that-work dept

While at the Leadership Music Digital Summit last week, I got into a fantastic conversation with Dave Allen, perhaps most well known for being in the hugely influential band Gang of Four. In fact, the reason I missed the panel discussion about ISPs teaming up with the RIAA was because the conversation with Dave was so fascinating. I hope to talk to him some more in the future as well, but he's a musician (who now helps other musicians) who really seems to understand the new business models that are out there.

Part of what we talked about concerned an experiment, where he convinced a few bands to stop offering set pricing on all of their merch, and instead, told them to ask each buyer what they wanted to pay. The bands that have tried this found that this made fans much happier. Many fans paid more than list price (even when told the "recommended price") because they really wanted to support the band. Other fans, who wouldn't have been able to afford the merch at the list price, came away much happier because they were able to afford stuff. Those fans become committed lifelong fans who are much more willing to spend more money in the future as well.

A few more bands have been taking Dave up on the challenge to try this model, and Ben Taylor (son of James Taylor and Carly Simon) recently tested it out and found that he made a lot more money doing things that way.

We took in well over $1000 in CD sales, double what we would on an average night. We normally sell 3 Full Lengths at $15 each and an EP at $5.

We sold a total of 84 CD’s averaging almost $12 per CD!

Last night we were in Jackson Hole, the trend continued, proving another good night. Where we sold 48 CD’s and averaged almost $11 a CD.

We are moving more product than we normally would and in average making more than what our CD were to sell on iTunes or a record store.